Public Bill Committee

[Mr. Peter Atkinson in the Chair]

Gerry Sutcliffe: On a point of order, Mr. Atkinson. It is a delight to see you in the Chair on this stormy day. At the beginning of the Tuesday sitting, I handed back the disc containing evidence from the informal evidence session carried out by the Opposition, which was given to me by the hon. Member for Hornchurch. I gave a hard copy of the transcript to the hon. Gentleman, so that the names of witnesses could be added and the Opposition could submit it to you, Mr. Atkinson, as evidence to the Committee under the new rules. I find it ironic, although the hon. and learned Member for Harborough might not, that staff from the shadow Home Secretary’s office rang the Home Office to say that they had lost the discs that I had given them. I am happy to supply another one, but it may not be necessary, as I know that the hon. and learned Gentleman has been working on the hard copy.

Peter Atkinson: I am not sure whether that was a point of order.

Edward Garnier: Further to that point of order, Mr. Atkinson. From time to time, we have to indulge the Minister, because he and his fellow Ministers are in a bit of a sticky patch. If he can make a feeble joke about what I would describe as no more than a slipped disc, rather than a lost disc, all power to his elbow.
I have gone through the transcripts and have filled in some of the names and some of the blanks where the wording was indistinct, and my researcher now has them. Perhaps between now and Tuesday I can work out with the Government how to present them formally, if that is what we do, and bring them within the confines of the Committee. That is a matter of procedural detail, however, and we do not need to trouble this afternoon’s sitting with it.

Peter Atkinson: On that point, I understand that the document has to go to the scrutiny unit and be approved by the Chairman before it can be printed.

Edward Garnier: Thank you. I do not think that I have ever heard of the scrutiny unit, but I am sure that it is a valuable part of Parliament. I hope that lots of people are usefully employed in scrutinising whatever the scrutiny unit has to scrutinise.

David Maclean: The blue-skies thinking unit.

Edward Garnier: I am sure that my right hon. Friend is a great one for pushing envelopes and scrutinising.

Peter Atkinson: Order. I say to the hon. and learned Gentleman that the scrutiny unit is part of the new modernisation process. No doubt he will be modernised appropriately later in the week.

Clause 8

The inspectorate

Question proposed, That the clause stand part of the Bill.

Edward Garnier: I shall make one or two brief points in relation to the clause. I see the need for an inspectorate of those who carry out probation services, but I amnot sure of the point of changing its name from the inspectorate of the national probation service for England and Wales to the inspectorate of probation for England and Wales. The word “national” will be removed, but I think that England and Wales deserve a national inspectorate.
In 2001, the second reform of the probation service since the Government came into office nationalised the service, which is now to be broken down so that it is more a creature of the National Offender Management Service. Is there any purpose, however, in going to the huge of expense of changing writing paper and brass plates on office doors? What is important is that we should have an inspectorate of the probation service, whose functions should be informed by a clear policy. I am concerned that the Government like changing the names of things. Another example is the Office of the Deputy Prime Minister, which has apparently been changed to the Deputy Prime Minister’s office, no doubt at vast expense. Those may be minor matters but, on the other hand, if the Government are going to introduce them, they might as well explain them in a way that enables the public to understand how and why that money has been spent.

Gerry Sutcliffe: Clause 8 makes consequential amendments to the provisions relating to the inspectorate of the national probation service to reflect the fact that the national probation service will cease to exist when local probation boards are abolished and that the inspectorate will in future need to inspect the services delivered by a range of probation providers. The clause renames Her Majesty’s inspectorate of the national probation service for England and Wales as Her Majesty’s inspectorate of probation for England and Wales, and it renames Her Majesty’s chief inspector of the national probation service for England and Wales as Her Majesty’s chief inspector of probation for England and Wales. It also amends section 7 of the Criminal Justice and Court Services Act 2000 to include the inspection of the provision of probation services under clause 3 of this Bill.
Clause 8(3)(b) allows the Secretary of State to give further directions related to the probation purposes referred to in clause 1. It confers further functions on the inspectorate to reflect any future changes in the clause 1 purposes. The substance of the work of Her Majesty’s inspectorate will not change, and it will continue to be a crucial mechanism for monitoring and maintaining standards.
Clause 8 merely updates the legislative provisions to reflect the other changes in the Bill. The hon. and learned Member for Harborough has referred to the issues around the inspectorate and the variety of changes that the Government have introduced. We want the inspectorates to work effectively and efficiently, and we want to make sure that we set out on the face of the Bill what the consequences will be for the inspectorates in relation to the new providers.
With the explanation, I hope that the clause can stand part of the Bill.

Question put and agreed to.

Clause 8 ordered to stand part of the Bill.

Clause 9

Approved premises

Edward Garnier: I beg to move amendment No. 29, in clause 9, page 6, line 6, leave out ‘approved premises’ and insert ‘probation and bail hostels.’.
Subsection (2) states that
“The Secretary of State may make regulations for the regulation, management and inspection of approved premises.”
And subsection (3) states that
“The Secretary of State may make payments to any person in connection with...the operation of approved premises”.
Although I broadly understand the intention behind clause 9, the provision is dangerously vague. Subsection (1)(b) states, in a rather Alice in Wonderland fashion, that
“‘approved premises’ means premises which are for the time being approved”.
Subsection (2) states that
“The Secretary of State may make regulations”.
We have not seen those regulations and do not know what arrangements the Secretary of State has in mind for the carrying out of probation purposes or for the running of approved premises, which is implied by the Bill, by operators other than the probation service.
After having seen the “Panorama” programme before Christmas 2006, it strikes me that there is a degree of public concern about the way in which probation premises and bail hostels are managed. Substituting the words “probation and bail hostels” for “approved premises” in subsection (3)(a) will allow us to extract from the Government better information about what or rather who they think will be running these premises.
On the face of it, the matter should not be surrounded by controversy, but we all know that the sort of people who are housed in bail hostels and probation hostels are often difficult to look after. They could be people who have been released from prison after a lengthy prison sentence, in which case they will have come out of the secure prisoner state and gone through the category D prisoner state—in parenthesis, the use of the expression “open prison” is perhaps misleading, which does not do any of us any good; as Lord Ramsbotham has suggested, we should call them “resettlement prisons”. When people come out of those prisons, they are sometimes housed in what will be called “approved premises”, and probation staff are supposed to look after them. We want to know precisely what sort of places “approved premises” will be. Will they be any different from the existing arrangements?
The “Panorama” programme highlighted controversial areas of public concern about bail hostels. Where will bail hostels be located? Can we be assured that the people who run them, who will be paid by the Secretary of State to carry out those functions on the Government’s behalf, will be adequately trained, resourced and able to control and direct the people in their care, so that those people receive the necessary treatment and supervision, which will allow the public to feel safe in their houses, streets and towns? It is a short point, but it is one that is worthy of a response from the Government. I look forward to hearing what the Minister has to say.

Gerry Sutcliffe: I am grateful for the way in which the hon. and learned Gentleman has raised the issue. There are 104 approved premises in England and Wales, including 14 run by voluntary management committees and one run by a private sector organisation. They are used primarily to supervise high risk of harm offenders on release from custody, and they make a crucial contribution to the protection of the public. I pay tribute to the staff who work in them, whose job is very demanding and difficult.
Hon. Members have mentioned the “Panorama” programme, which highlighted some of the issues relating to approved premises. Many people are working very hard and very successfully in the management of offenders, but stories that show problem areas always attract the attention of the media, so we do not hear about the occasions when the good work is carried out to a successful conclusion. Right at the start of our proceedings, I said that we had to be truthful with the public about what we can do in terms of the management of offenders. The expectation that offenders can be watched 24 hours a day, seven days a week is not realistic. However, they can be managed properly, and the multi-agency public protection arrangements that we have in the UK are unique and are working very well on the whole.
Section 9 of the Criminal Justice and Court Services Act 2000 introduced the term “approved premises” as the standard term to describe those establishments. Previously there had been no standardised names, with establishments operating as probation hostels, bail hostels or probation and bail hostels. The 2000 Act endorsed the concept of a single estate with a generic purpose, and it also emphasised the fact that these establishments are approved by the Secretary of State for a specific purpose and are therefore distinct from the other forms of supported accommodation available to offenders—the latter point is important, because the matter is not only about terminology.
The 2000 Act reflected the changes that had occurred in the use of approved premises over a period of years. Whereas historically hostels had often been used to provide suitable accommodation for defendants who might otherwise have been remanded into custody—hence the term “bail hostel”—they are now targeted at high-risk offenders on release from custody on licence. I accept that the term has not entered common parlance and that the expression “bail hostel” is still more widely used outside the probation service, but it is misleading and entirely inappropriate for use in legislation.
On the question of whether the public will be adequately protected in future, public protection is at the heart of what we want to achieve. The MAPPA arrangements are important to us. There is no way that we would want to diminish those responsibilities to the public. I believe that the proposal set out in the clause is an entirely appropriate way to head forward. There are issues about accommodation in addition to approved premises which I am sure we will come back to when we consider the outcome of the child sex offenders review that the Government are currently undertaking. There are a great many issues around resettlement. I hope that with that explanation the hon. and learned Gentleman will be relatively happy and withdraw the amendment.

Edward Garnier: Happiness, relative or otherwise, is not what I feel, but I hear what the Minister says. I wish to let him know that we shall keep a close eye on how the provision works in practice. It is one of the sharpest interfaces between the law-abiding public and the criminal justice system and if it goes wrong, the buck will stop at his desk. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Neil Gerrard: I beg to move amendment No. 34, in clause 9, page 6, line 18, leave out subsection (7).
This amendment deals with the final subsectionof the clause, which removes some people from the provisions of the Private Security Industry Act 2001. The Minister said in his response to the previous debate that, in the main, approved premises are run by the public sector, but that a number are run by the voluntary sector and one by a private company. I have a feeling that that one has got into considerable difficulties in recent weeks, although I might be wrong. I am aware that one hostel that is not in the public sector has had problems.
As the clause stands, it appears to open up the possibility of considerably more approved premises being run in the private sector. Subsection (3) states that the Secretary of State may make payments to any person in connection with the operation of approved premises. Will the Minister explain the reason for including subsection (7)? It appears to exclude those who manage private sector approved premises from the scope of the 2001 Act, which regulates the private security industry and requires people in a range of jobs to be licensed. As part of the licensing process there are Criminal Records Bureau and identity checks, and training and qualifications are required. I am puzzled why we should remove from those safeguards people working in approved premises, who will be dealing with fairly dangerous people.
The 2001 Act includes among the definitions of licensable activities
“guarding one or more individuals against assault or against injuries that might be suffered in consequence of the unlawful conduct of others.”
That is clearly a possibility in any approved premises. It seems strange that somebody working on security at my local greyhound racing track is required to have a Security Industry Authority certificate, but somebody managing a bail hostel is not. I would have thought that that job would be at least as difficult and perhaps more open to risk.

Robert Flello: Does my hon. Friend agree that it is a matter not only of danger, but of vulnerable adults who will be dealt with in approved premises?

Neil Gerrard: Absolutely. One of the points about requiring an SIA licence is that there is a requirement to go through CRB checks, which one would expect to pick up somebody who might be a problem.
The Minister might tell me that I am misinterpreting the subsection. I was puzzled by the use of the word “manager”, and what it might mean. Obviously, one would expect that in approved premises, there would be a number of staff, not a single person. The manager might be managing quite a small number, so perhapsI have missed something in the drafting of this subsection. That takes us back to our discussion this morning about training and qualifications, and ensuring that people who are working in the probation service or with offenders have the right training and qualifications, and that they are not people who are going in any way to put someone at risk, such as an ex-offender or a member of the public. It is important that we know that people who are running approved premises are of the right quality to do so. I should like to ask the Minister a probing question: why does there appear to be that exclusion for the private security industry? On the face of it, it would seem eminently suitable that it should apply to people who are going to run a private sector hostel of that nature.

Edward Garnier: I agree with quite a lot of what the hon. Gentleman has just said. Although he and I disagree over the contracting out of supervisory services to the non-state sector, it is my view that if we are going to do it, we must do it properly. If we are going to allow non-state officers to carry out supervisory functions, they must be properly qualified and regulated, and must bring with them the necessary public confidence. The hon. Gentleman has hit upon a most important aspect of the Bill.
I am concerned that the expression “a person”—somebody who is acting as a manager—needs to be specified as a human being. As a matter of law, the expression “a person” can mean a non-human being; a company is a legal personality. As the hon. Gentleman indicated, if a manager is the manager of a numberof separate premises, he cannot be in every one atthe same time, if he is a human being. Equally, if  the manager is a company, which carries out its management functions through a number of individuals, we need to be sure that not only is the company behaving itself and has set up protocols and systems that enable it to employ people in a particular way, but that individual employees of the corporate manager should be properly trained and accountable, either directly or via their company, to the public whom they are seeking to protect. That is quite apart from the other aspect of the matter, which as the hon. Gentleman mentioned, is to make sure that the care of the individuals in that set of premises is being properly looked after.
There is a need for clarity here. It is often thought that the Private Security Industry Act 2001 just dealt with nightclub bouncers, but it covers a far wider area of guarding activity. The Minister needs to explain to us how, by excluding managers of approved premises from the ambit of the 2001 Act, he is enhancing and not diminishing public protection and proper supervision of those within the approved premises.

Mark Hunter: I shall detain the Committee only briefly on the matter. I must admit that when I saw the amendment, I was not entirely persuaded one way or another about it, but having listened to the hon. Member for Walthamstow and the hon. and learned Member for Harborough, I think that there is an important issue at stake here, which is right to be voiced in the way that it has been so far. The Secretary of State—I beg your pardon, I mean the Minister—

Gerry Sutcliffe: You never know.

Mark Hunter: The Minister says “you never know”, from a sedentary position and I wish him well. Perhaps his performance on this Bill may give us an indication about his future. I am sure that the Minister recognises that this is a serious matter. I am grateful for the way in which it has been brought up, because it highlights an issue that is worthy of a more detailed response than it might otherwise have had. I look forward to hearing what the Minister has to say about it.

Gerry Sutcliffe: I thank my hon. Friend the Member for Walthamstow for having raised the matter and other hon. Members for their contributions. I understand why, at first glance, there might seem to be a diminution in protection and supervision. I hope to reassure the Committee that that is not the case. The term “manager” here includes all staff working in approved premises who are able to do the job and have had adequate training. As the Committee has requested, I shall go into the matter in more detail.
Clause 9 is based closely on the current legislation on approved premises, namely section 9 of the Criminal Justice and Court Services Act 2000. However subsection (7) is new. It ensures that the requirements of the Private Security Industry Act 2001 for the licensing of individuals supplied under contract to provide manned guarding activities do not catch those involved in the management of approved premises. The aim is to protect the public by driving up standards in the private security industry and removing the criminal element. That background might help the Committee.
The Private Security Industry Act 2001 sets out the licensing requirements for the private security industry established by the Security Industry Authority, and requires the authority to regulate the industry through the licensing process. The Act works by defining for its purposes what is security activity and the conditions under which such activity becomes licensable. One condition is that the relevant activity is supplied as a service under contract. Under the terms of the Bill, services in approved premises will in future be delivered under contract, so we need to consider whether any of the activities carried out in such premises meet the Act’s definitions of security activity. If they do, the Act could apply to those activities unless they are exempted. Security activity is defined in Schedule 2 to the 2001 Act and covers activities such as manned guarding and wheel clamping.
Manned guarding is defined as
“(a) guarding premises against unauthorised access or occupation, against outbreaks of disorder or against damage;
(b) guarding property against destruction or damage, against being stolen or against being otherwise dishonestly taken or obtained;
(c) guarding one or more individuals against assault or against injuries that might be suffered in consequence of the unlawful conduct of others.”
We do not think that the work of staff in approved premises fits that description, but we are concerned that somebody might argue that it does and that it should, therefore, be subject to the licensing regime. That would be inappropriate. The work of staff in approved premises does not constitute private security work in the sense intended by the 2001 Act, nor will it in future. The fact that the services will be delivered under contract will not change that. We think it prudent to put the matter beyond doubt to prevent unintended consequences or uncertainly later.
It has been suggested that by not subjecting services in approved premises to licensing, we put at risk standards in security and risk the involvement of undesirable elements in sensitive and dangerous work. Nothing can be further from the truth. Anybody bidding to run approved premises will have to meet stringent tests and demonstrate an ability to run premises to a high standard. Managers and staff of approved premises will receive training appropriate to their work. That will often replicate the relevant part of the wider training of probation staff. The purpose of the training is not to enable them to carry out guarding activities, as defined by the 2001 Act, but to equip them better to carry out their duties in connection with assessing, supervising and managing offenders and the risks that they pose in the context of approved premises.
This is not a blanket exemption for approved premises. If security operatives were provided on contract to such premises, for example to guard them, they would need to hold licenses issued by the Security Industry Authority in the normal way. However, for normal probation work in approved premises, the 2001 Act is entirely inappropriate and would do what my hon. Friend the Member for Walthamstow does not want us to do, namely to dumb down the service. I hope that with that explanation—

Edward Garnier: Although what the Minister says makes good sense in theory, many of our concerns might be mitigated if the Government were to come forward with a model contract, so that we could see what a company bidding to manage approved premises would have to comply with, albeit bids would differ in detail. The model contract might provide for the way in which a company, a charity or another third sector body carries out its functions and ensures that those who work for it behave. Equally, the Bill provides huge opportunities for regulation to be made. If we had even a glimpse of the ankle of the things that we are promised, many of the fears that are justifiably held at the moment would go away. Is there any possibility that such help is forthcoming?

Gerry Sutcliffe: I understand the hon. and learned Gentleman’s concern, but in response to the amendment I have explained adequately why we are not considering that in the context of the manned guarding and wheel clamping provisions of the 2001 Act.
I said that, to work on approved premises, managers and staff will have to meet stringent tests in the qualifications that they will have to have. I am not against considering further provisions, but I do not want to do that at this stage. I said this morning that we will consult on how to take things further on the make-up of trusts, and we will also consider the types of provision that will come out of the innovations that we seek. However, all that will occur against the existing inspectorate provisions and measured tests, so I see no possibility of the quality of the service diminishing to the extent that people are put at risk.
I hope that I have reassured my hon. Friend the Member for Walthamstow about the use of the 2001 Act, and I shall go away and consider what can bedone on the points raised by the hon. and learned Gentleman. Public confidence in approved premises is paramount, and approved premises have to be the way that we manage serious and dangerous offenders. Given that I want there to be the greatest possible public confidence in what we do, I hope that the hon. and learned Gentleman is satisfied with my assurance that I will consider how we can tighten the rules on the use of approved premises as much as possible.
There is no need for the amendment, and I hope that my hon. Friend will withdraw it.

Neil Gerrard: I understand the points that my hon. Friend the Minister makes. Obviously, when the 2001 Act was debated and enacted, it was not envisaged that it would apply to bail hostels—to what we are now describing as approved premises. At that point, nobody considered whether it should, because the matter was not being debated in the context of more private sector involvement in probation services and in dealing with offenders.
It is arguable that the part of the definition in the 2001 Act that covers guarding more and more individuals against assault or the injuries that might be suffered as a consequence of the unlawful conduct of others could apply to such hostels, although, clearly, other parts of the definition would be highly unlikely to apply. The key is to ensure that people who work in premises of that nature have the right qualifications  and the right background, and that such places do not end up, for instance, with employees who have previous criminal convictions.

Gerry Sutcliffe: I want to pursue the point. If the amendment were accepted and the tests were not stringent, one might end up with someone who was not properly qualified. If we suppose that what my hon. Friend fears happens and the private sector runs all the approved premises estate, somebody approved on the basis of the 2001 Act might still not have the required skills to be able to deal with approved premises. The provider could claim that that person was okay because they had got through on the 2001 Act. I think that the amendment devalues the role of the person who works in approved premises, because it says that somebody with a lesser qualification could have that role.

Neil Gerrard: I understand the argument. Somehow, having the licence under the 2001 Act might be seen as sufficient qualification for someone employed in approved premises. I would not want to get into such a situation. Someone with just that certification might not have the other skills and qualifications that one would expect and want from someone working in approved premises. The key is what the tests are going to be. If we are not going to have someone with an SIA licence, then the requirements for qualifications and checks ought at least to include all similar checks, such as identity and CRB checks.

Edward Garnier: Does the hon. Gentleman have any views on the suggestion that I made to the Minister? Seeing a draft model contract would be helpful, so that he could be assured that, if not licensed, private providers would have strict contractual requirements, which might be reinforced in a disciplinary way by regulations under secondary legislation. The Minister is trying to reassure us, but cannot do so wholly, because he does not yet know what will be the contractual terms, which have not been written. That is not his fault. The hon. Member for Walthamstow might be somewhat reassured to see the sort of thing that would bind a non-state party to the Home Secretary.

Neil Gerrard: There is some merit in that. I am not sure that we can expect a draft contract at this stage, but perhaps the Minister can indicate that he will look at the issue. Before we finish with the Bill, it would be helpful to have a clearer indication of the sorts of checks on, and the minimum required from, someone working in or running approved premises. Judging by the Minister’s reaction, we might be able to get to the bottom of that over the next few weeks, before the Bill finishes its passage through the House. For now, on that basis, I am quite happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Clause 10

Disclosure for offender management purposes

Mark Hunter: I beg to move amendment No. 32, in clause 10, page 6, line 40, at end insert—
‘(h) representatives of local authorities’.
The amendment seeks to ensure that local authorities are included in the important exercise of data sharing. I would like to explain why I think the amendment is needed and would improve the Bill. All hon. Members would agree that sharing data among relevant organisations is an excellent idea, not least as an essential step towards joined-up service delivery at the local level. I know that joined-up thinking and service delivery is an issue close to the Government’s heart. I also hope that it is not contentious to say that local government plays a vital role in the rehabilitation of offenders, but to perform that vital role effectively it needs to be fully involved in the system.
In 2005, the Local Government Association surveyed local authorities and discovered that only3 per cent. of them were informed when prisoners were released into the community, which is a very worrying statistic. Such information on prisoner release is vital if local authorities are to perform the effective role in offender management that I am sure we all want to see. 
Many local authorities provide excellent services that help offenders with housing, advice on benefits, treatment for drug and alcohol addiction, employment advice and training opportunities, and all those services can help to reduce reoffending. The 2005 report by the LGA, “Going straight”, found, not surprisingly, that being in employment reduced the risk of reoffending by between one third and 50 per cent. Having stable accommodation also reduces the risk of reoffending by a fifth. Once ex-prisoners are in stable accommodation, over three times as many find employment as those without an address. However, the report also found that only a third of offenders have stable accommodation on release, and they canface significant difficulties—as we would all acknowledge—in securing it. That figure needs to rise and, without the integration of local authorities into the probation system, that will not happen. I ask the Minister to respond to the point about the value that local authorities offer in the current probation system, and how that value will be preserved.
Education and training are equally important, but half of all prisoners do not have the skills required by 96 per cent. of all jobs. Although the Learning and Skills Council now funds all post-16 education, except for university education, local authorities still contribute considerable amounts to adult education, and most of them deliver a wide spectrum of adult education services under contract to local learning and skills councils.
To establish what education service provision is needed in each local authority area, information about offenders is necessary. Again, the importance of involving local authorities in the sharing of that information is paramount, if rehabilitation is to happen effectively and reoffending rates are to fall.
The situation regarding education is mirrored by that regarding employment. Two thirds of people enter prison without jobs, and two in three of those with a job lose it—again, not surprisingly—when they enter prison. Local authorities need to establish what employment advice they can offer to offenders, for whom such help is most needed. Without being integrated into the probation system, local authorities will struggle to provide that advice to the level thatwe would all desire. Unless the vital sharing of information that is outlined in clause 10 is extended to local authorities, their services cannot be targeted and effectively planned to include the numbers and needs of offenders.
Local authorities also play an important role in local strategic partnerships, often acting as the central point for other organisations to become involved. Although voluntary groups, where they act as probation providers, and the police, who are often included in these strategic partnerships, are included in the list in clause 10, local authorities are not. There seems to be no reason for their exclusion and I would like the Minister to address that issue, and reassure us that it is not the intention for local councils to be excluded.
If local authority representatives will not included on the list of those organisations that can share information on offenders, as outlined in clause 10, how can the system ensure that information about offenders is passed on to local authorities to ensure that the services that local authorities provide are properly planned to create the provision needed in each local area?

Gerry Sutcliffe: Once again, I find that I have a lot of sympathy with the hon. Gentleman. As he has said, the amendment would add representatives of local authorities to the list of persons among whom information can be shared for the purposes specified in the Bill. Local authority representatives typically need information about offenders for whom they are providing housing or to carry out social service department responsibilities—as he has said, there are also other reasons. However, that need differs substantially in terms of the quantity and nature of the data required from the needs of those listed in subsection (2), whose core business is the day-to-day management of offenders.
The intention behind clause 10 is to put beyond doubt for the main parties involved in managing offenders with whom and for what purposes data can be shared. The amendment raises the question whether adding representatives of local authorities to the list would be valuable, or whether it would confuse and distort that intention. The clause includes provision to meet any future need by including additional parties such as local authority officers. Subsection (2)(g) allows the Secretary of State to lay regulations before the House specifying additional persons to be included in the list. It would not be sensible to include other organisations at this stage on the basis that they might need to be included in future.
We recognise the unique position of local authorities and their responsibilities in offender management. In particular, they have the established and important role under the multi-agency public protection arrangements of the proper consideration of housing and the safeguarding of vulnerable groups. That role might make it sensible to include local authorities in the Bill. However, we are concerned that a reference to “representatives of local authorities” would be too vague and that the ambiguity would have unintended and unhelpful consequences. I nevertheless believe that the amendment and the hon. Gentleman’s points merit further consideration. I undertake to reconsider the matter and to return on Report with a considered view. With that offer, I hope that he will withdraw the amendment.

Mark Hunter: I am grateful to the Minister forhis considered response to my argument. He has graciously undertaken to consider the sentiment behind the amendment and said that he understands my point and has sympathy with it. I look forward to the Government’s proposals. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier: I beg to move amendment No. 19, in clause 10, page 6, line 41, after ‘information’, insert
‘of a nature that the Secretary of State shall by regulation define’.
By means of this amendment, I intend to extract from the Government more clarity on the sort of information that they intend to be shared by the persons listed in subsection (2). Subsection (3)(b) states that disclosure of information to those listed can take place only if it is
“necessary or expedient for any of the purposes mentioned in subsection (4).”
We are familiar with those purposes, except that subsection (4)(c) adds information for
“any other purposes connected with the management of offenders (including the development or assessment of policies relating to matters connected with the management of offenders).”
That is delightfully vague and suggests that greater explanation than can be gained by reading the Bill is appropriate. Until we see the model contract, which I mentioned in the previous discussion but one, and the various as yet undrafted regulations behind the Bill, with which the Home Secretary is going to come forward, the public and those who take an interest in this aspect of public policy are in something of a difficult area.
If the provision of information is, on the Minister’s say-so, going to be reasonably clear and to a purpose, what will happen with the unlawful or unauthorised disclosure of information? Will that be a matter of contractual discipline, administrative discipline or criminal penalties? If, for example, a private operator or charitable body which can hold information—such a body would come under the heading
“any other person specified or described in regulations made by the Secretary of State”—
were guilty of disclosing information, whether wittingly or not, to an unauthorised person, what would happen? We are dealing with sensitive information, which concerns not only the offenders themselves, but possibly their victims.
If information about the victims of serious sexual offenders were to get into the wrong hands—I hope that the probation service rather than a non-state operator will look after serious sexual offenders, particularly post-custody—it could have the most appalling consequences for the victim and their family. We need to be reassured that the Secretary of Statewill have the machinery to deter and deal with unauthorised disclosure. I do not think—the National Association of Probation Officers has made this point—that the private sector is incapable of respecting people’s confidence, and I do not think that the private sector is bound to release information improperly to people outside the list in subsection (2). However, we need to be reassured that in the event that something goes wrong, or is likely to go wrong, the Government have thought through what needs to be done.
It is not strictly germane to the Bill, but over the past few days we have heard remarks made by the Home Secretary about pulling together various Government databases in the context of the future of the national identity register. I will not have an argument now about whether it is a good or bad thing to have a national identity register—my views are pretty clear—but there seems to be some doubt about how the register will be constructed. Will it involve one great Government computer, or will it be lots of little computers with bridges between them so that information about subject A can be moved from computer B, and so on? I need to know whether the information that we are talking about, which will presumably be accumulated for offender management purposes, will go on to the national identity register, where it will be accessible by all sorts of other people, and whether penalties of one sort or another will be imposed if such information is misused or improperly disclosed.
On subsection (3)(b), we also need to know who will decide when and whether the disclosure of information is “necessary or expedient”. Will it be the Secretary of State, the non-state operator or a combination of their various officers and employees, or will a decision emerge in some haphazard way? Who will decide what “any other purposes” are in relation to the disclosure of information connected with the management of offenders?
I appreciate that subsection (6) says that the existing restrictions on the unlawful or improper disclosure of information are not affected by the Bill. However, as we have seen in the case of amendment No. 34, which was tabled by the hon. Member for Walthamstow, all sorts of things happened which were not contemplated by the drafters of the Private Security Industry Act 2001. Just as that Act did not contemplate private managers of bail hostels, in constructing this Bill, we must think forward to see whether there are areas of concern that could slip through undiscussed or unconsidered.
I am somewhat concerned to notice that under subsection (7)
“the Secretary of State may by order amend or repeal any provision mentioned in subsection (6)(b) which is contained in an enactment”.
An enactment is a piece of secondary legislation. We are allowing an accumulation of deeply sensitive information about individuals, be they offenders, victims or, possibly, witnesses. Under the Bill, the information can be disclosed to authorised recipients only, but we are providing within that permission vague descriptions of what is necessary or expedient and vague descriptions of “any other purposes”. We are giving the Secretary of State the power to amend protective legislation, albeit secondary legislation, without any of us at this moment knowing what is envisaged. While I do not suggest that this discussion should lead to a vote, I am interested in achieving clarity in legislation, particularly in a Bill of this nature.

Gerry Sutcliffe: I do not accept the hon. and learned Gentleman’s charge that the Government have been vague. The situation is quite the reverse, and I shall try to reassure him, although that is sometimes difficult. I do not dismiss what he has said about looking at this in terms of what the future may hold. This is not an attempt to create wide-ranging, dramatic new powers on sharing offender information. We hope that the provision will put beyond doubt how criminal justice organisations should share information with each other about offenders in order to ensure their effective management and to inform research into improving policies and outcomes for offender management.
The aim of the clause is to provide a clear structure in which effective information sharing can take place on a flexible but principled basis, subject to equally clear limitations on who can share the data and for what purpose. The sort of data that we envisage will be disclosed under this power can already legally be shared in accordance with the Data Protection Act 1998 and other safeguards, such as article 8 of the European convention on human rights. The clause does not disapply or in any way modify those safeguards.
It was precisely because of our desire to be absolutely transparent about what data can be shared and to ensure that this information is shared as it should be in practice that we think it desirable to create a power to share data on the face of the Bill. By doing so, we hope to provide the most effective service to the offender, to services to facilitate the rehabilitation of offenders and to the public for their protection. We hope to do so by sharing the data for both operational and research purposes.
On an operational level, clause 10 clarifies that different prison operators can inform one another of the security information when a prisoner is transferred from one company’s jail to another. A provider of probation services can pass on a risk assessment to a local authority housing provider, where that is appropriate. The clause also enables data to be matched for the purposes of research, thereby enabling the Government to evaluate the effectiveness of various interventions with offenders to see whether they are successful and whether they represent value for money for the taxpayer.
For example, clause 10 makes it clear that the constituent elements of NOMS can exchange their data with other Departments, subject to the need to comply with other statutory limitations that might apply to the specific type of data that is proposed to be exchanged.
In respect of the operational and research aims, the limitation in the clause on exchanging data only for offender management purposes will operate in practice as a limitation on the type of data that can be exchanged. If data cannot be disclosed for an offender management purpose, they cannot be disclosed under the clause. The amendment seeks to address anxiety about unnecessarily widespread and permissive data sharing, but that is dealt with by the clause as drafted. Although I understand the concern that underscores the hon. and learned Gentleman’s amendment, accepting it would undermine the purpose of clause 10, which is to provide absolute clarity about the information that may be shared within the close circle of organisations managing offenders.
For the reasons I have given, amendment No. 19, which requires the Secretary of State to define the nature of information to be shared in discrete regulations, would add little, if anything, to the safeguard established by clause 10(4), which sets out the purposes for which information can be shared. The amendment would make the clause far less useful than it is intended to be, and it would create unnecessary work for Departments, the House of Commons and the other place, because it would require potentially frequent additions to a list.
The definition of the purpose for which information can be shared, and hence its nature in subsection (4), is necessarily broad. It covers existing information-sharing powers and puts beyond peradventure the ability of criminal justice agencies to share information with each other when appropriate and only when appropriate.
To require the Secretary of State to include in secondary legislation every piece of information thathe might wish to share would mean anticipating, identifying and defining all types of information, which is a near impossible task. It would render the clause unnecessarily unwieldy and would create unintended new restrictions in data sharing by failing to state every conceivable purpose and type of information that organisations already share or that complies with existing legal permissions. Furthermore, it would risk overlooking unforeseen or unusual types of information that it might be necessary to disclose in cases in which public protection might otherwise be undermined if disclosures were not to take place. In such a case, if the type of data in question were not included in secondary legislation, it would not be possible to disclose it. Such inflexibility is not acceptable and would undermine the purposes that NOMS was established to achieve and with which the clause is intended to assist. The hon. and learned Gentleman’s amendment is in direct contrast to what we want to achieve and the purpose of the clause and the Bill, which is to enable the more effective management of offenders and the removal of doubt about what information can be legally shared and with whom.
I may not have completely satisfied the hon. and learned Gentleman, as he has asked who will be responsible for making decisions. That responsibility rests with the party that may want to exchange information. Obviously, if the Secretary of State can be helpful in those circumstances, he will want to assist, although he will not be directly involved. The remedies for unlawful disclosure will be regulated by the Data Protection Act 1998 and the European convention on human rights, and it is not a criminal offence.
The safeguards are in place. We are trying to be transparent in respect of this clause—the information is there, and the provision is not vague and sets out clearly what we want to achieve. I think that the hon. and learned Gentleman has accepted that his amendment may not necessarily be the route to take, although he may want to return to the subject. I hope that he will ask leave to withdraw the amendment.

Edward Garnier: So much legislation pours out of the Home Office that Ministers must have their responses written for them before debates. It is a pleasure to listen to the Minister, but the points that I made were not taken on board by the anticipatory speech that was drafted for him, which is a function of life in the Home Office. The Minister said that on the one hand my amendment is too vague, and on the other it is too prescriptive. That was clever of me.
As I said in my opening remarks, I will not press the amendment to a Division, but we should not lightly pass over the way in which information is exchanged in such delicate matters. If, between now and Report, the Minister and his officials can come up with some ideas after meetings with the Information Commissioner and others—the Minister has mentioned the Data Protection Act 1998—the House will benefit from his further research. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11

Power of search in contracted out prisons and secure training centres

Question proposed, That the clause stand part of the Bill.

Crispin Blunt: I do not want to detain the Committee, but I would like some elucidation of the thinking behind this change to the law, particularly as I have two prisons in my constituency. From the explanatory notes, I understand the change to be that in contracted-out institutions—the prisons in my constituency are not contracted-out—prisoner custody officers will be allowed to invite prison visitors to strip themselves of all their clothes to see whether there is anything in the clothes or on the body. They will not, however, be allowed to carry out an intimate search, which is presumably a search of body cavities.
I would be grateful if the Minister were to explain the reasoning behind the provision. Will he give us some idea of offences that have been committed by visitors smuggling drugs and other items into prisons? What evidence does he have of behaviour in private prisons differing from that in Her Majesty’s prisons? Is there a concern that a lacuna exists, because he has not extended to contracted-out prisons the right of intimate searches?

Gerry Sutcliffe: I thank the hon. Gentleman for raising those concerns. Perhaps it will help the Committee if I give some general background to clauses 11 to 15, which deal with related matters.
The Criminal Justice Act 1991 created the legislative framework that supports the use of private providers of custodial services. It created the role of prisoner custody officer, equivalent to a prison officer, as well as the roles of director, equivalent to a governor, and of controller—a Crown servant—who was given statutory duties aimed at ensuring the proper running ofthe establishment and the appropriate treatment of prisoners. The 1991 Act defines the scope of the powers of each group. Clauses 11 to 15 and clause 21 make specific amendments to the 1991 Act, rather than seeking to introduce new legislation to replace or supplement it.
The first private prison opened in 1992, and there are now 11 such prisons operating in England and Wales holding about 10 per cent. of the prison population. The companies that provide those services have developed a strong track record of delivery and are driving forward the decency agenda, as well as introducing innovation and increasing value for money in public sector prisons. Martin Narey, the former director general of the Prison Service, has said that if had not been for the private sector, the decency agenda would not have moved at the pace that it has.
If we are to make a reality of the recommendations in Lord Carter’s report, “Managing Offenders, Reducing Crime”, then we need to provide, so far as it is practicable, a level playing field between public, private and voluntary providers in the delivery of services to offenders. That aim is best served by ensuring parity in the framework within which services are provided, so as to remove barriers to the best provider being selected.
In response to Lord Carter’s recommendations and the private sector’s strong record on delivery, we therefore propose to resolve some of the historical inconsistencies in the development of private custodial provision. We will create a level playing field for contestability by putting directors on a similar footing to prison governors in the public sector and expanding the powers of less senior workers to align them with their public sector counterparts. This raft of changes is therefore supportive of the general development of NOMS.
Turning to the substance of the clause, the 1991 Act placed limits on the power of prisoner custody officers to search visitors which are more restrictive than those that apply to prison officers in the public sector. Those powers prohibit anything other than a rub-down search, and they do not permit a visitor to be required to remove any piece of clothing other than an outer jacket, jacket or gloves. Such a strict prohibition is not imposed on the public sector. The smuggling of drugs and other items of contraband is a problem in both sectors. The searching restrictions on prisoner custody officers have unintentionally made illegal activities on the part of visitors and prisoners potentially easier in private prisons, which does not make sense and which may cause a real risk to the maintenance of prison security in the future.
With this in mind, we seek through this clause to make it clear that the rub-down search power of a prison custody officer is broadly equivalent to that available to a public sector prison officer. The clause expands that power by deleting from the 1991 Act the prohibition of the removal of anything other than outer clothing. I recognise that it is important that the power is exercised properly and with restraint, and that the limits to the power are fully understood by those who use it. To reflect that desire, we have expressly included in the clause a prohibition on the conduct of intimate searches, as defined under section 164(5) of the Customs and Excise Management Act 1979, of visitors or prisoners by a PCO. It is our view that such searches, if necessary, should be carried out only by a police officer.

Crispin Blunt: Does that mean that prison officers and prison custody officers will be on exactly the same footing, or will prison officers still enjoy a wider right of search, such as the right to conduct more intimate searches than prison custody officers?

Gerry Sutcliffe: No; there are differences in relation to their duties—we will come on to that point in clauses relating to the role of a constable—but there will be parity in relation to strip searches. It is important to set out the nature of those responsibilities, which must be used in the right way in what we hope will be very limited circumstances. However, we need to close that gap.
The searching techniques employed will be exercised in line with procedures currently used in public sector prisons and in accordance with relevant prison rules and young offender rules. It will ensure that staff exercise their powers appropriately by having them certificated as competent by the controller. Furthermore, a controller will be able to observe staff conducting such searches and report to the Secretary of State if allegations are made that the power has been improperly exercised. They will also be able to impose penalties under the contract. In addition, the independent monitoring board in each establishment and the prison and probation ombudsman will provide impartial avenues for complaint.
Given that the restrictions imposed by the 1991 Act apply to young offender institutions in the same way in which they apply to prisons, I should point out that the expanded powers this clause provides would apply equally in a privately operated young offender institution, although at the moment there are no privately run YOIs. A similar amendment to the Criminal Justice and Public Order Act 1994 will create parity in secure training centres by giving custody officers the same expanded power of search. Once again, it is important to emphasize that the power relates to searching visitors to those centres and not to searching the residents themselves.
Finally, the changes proposed by the clause do not provide custody officers or prisoner custody officers with constabulary powers. It is not necessary to provide them with such powers in order to achieve the aims of the clause. I hope that, with those assurances, the Committee will accept the clause.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12

Power of detention in contracted out prisons and secure training centres

Question proposed, That the clause stand part of the Bill.

Edward Garnier: I just want to develop some of the points that my hon. Friend the Member for Reigate mentioned in the debate on clause 11. They relate to the powers of prisoner custody officers to detain suspected offenders. I seek clarity about the geographical limits of PCOs to detain. Under new section 86A(1) of the Criminal Justice Act 1991:
“A prisoner custody officer performing custodial duties at a contracted out prison shall have the following powers”.
Are those powers limited to the geographical area of the contracted-out prison, or can the PCO exercise powers of detention outside the limits of the prison grounds? That might be relevant, because under new section 86A(3), a person who makes off while subject to a requirement to wait can be guilty of an offence.
The expression “makes off” might need further explanation. Does it mean get clean away, or simply move away in a way that is contrary to the request of the PCO? I can see that if the person gets clean away, that will present a problem for the relevant officer, because he will not have the power to chase after him or call for assistance. Perhaps something needs to be done about that.
I also invite the Minister to explain how new section 9A(2) of the Criminal Justice and Public Order Act 1994 bites. It says:
“Where the officer has reason to believe that the person is committing or has committed an offence...the officer may—
 (a) require the person to wait with him for the arrival of a constable for such period as may be necessary (not exceeding two hours); and
 (b) use reasonable force to prevent the person from making off while subject to a requirement under paragraph (a).”
Does that mean that the custody officer has under that legislation the power to lock people up? Does the person wait only in a waiting place, say a public room in which he is told, “Please don’t move”, or does the expression “reasonable force” imply that having ordered a person to do as he is told, the officer can physically put him in a room and lock him up until a constable arrives? Those matters will no doubt be made clear during the training of PCOs, and it might be that they are powers that public service prison officers have and private service prison officers do not. It is important that legislators, at least, should know what the Government intend so that we can better understand the context in which the clause operates.
Let me say one more thing before the Minister replies. One of the useful things that we gained from the informal evidence session last week was that Mr. Martin Narey, who had been in the Prison Service for 25 years before he moved to NOMS and then to Barnardo’s, candidly told us that he had spent a long time in the Prison Service thinking that the use of the private sector in the prisons world was wrong. He even used the expression “immoral”. However, by the time that he had finished, he was utterly convinced that the private sector was a useful addendum to the prison system. It is interesting how the Government have followed his lead and, although the Labour party used to be vehemently opposed to private sector involvement in prisons, it now seems to be a champion of it. Is it not interesting how these things change?

Gerry Sutcliffe: On that final point, what the Government are concerned about is what works. I have a great deal of respect for Martin Narey’s work in the posts that he has held and in his current post at Barnardo’s, where he is doing some excellent work on the provision of support for children and is involved in giving expert advice on the sex offender review that is taking place. We should listen to him. He has said interesting things about the respect and decency agenda in prisons, and the cultural changes that have taken place there. It takes somebody who is very keen and involved with the issues to be able to change his mind in the way that Martin did. That means that we should all show a great deal of respect to the detail of what he has said.
I explained to the Committee what clauses 11 to 15 set out, and we have just had an hour’s discussion on clause 11, PCOs, the criminal offences that may be committed and the ability to carry out the searches that are required. Clause 11 sets out how we want to extend the effective search powers to PCOs, which is likely to increase the detection of potential criminality via visits. Accordingly, it is sensible that PCOs’ increased ability to detect potential criminal acts is matched by provision of a specific power to detain an offender at the point of detection until a police officer can arrive at the prison in question and take over. The hon. and learned Gentleman asked if that power would be extended to public places. No, it will be confined to the grounds of the prison or secure training centre.
These difficulties do not exist in public sector prisons, because we know that prison officers working there are Crown servants who have been given constabulary powers by the Prison Act 1952. We do not consider it necessary or desirable to give such powers to a non-Crown servant to achieve the aim of the clause. However, we feel that this is an appropriate time to resolve the difference in the power to detain. In recognition of the concerns expressed over the granting of such detention powers to employees of private companies, we have been careful to ensure that the power does not provide more than is necessary to achieve our desired aims. The clause does not create an unfettered power to detain, and includes a number of important safeguards that should ensure that it is used only when absolutely necessary.
First, the power to detain can only ever be used by a PCO in relation to a visitor to a prison. Secondly, the detention power will be available only to a PCO working at a contracted-out prison. Thirdly, we propose that the PCO will have the power to require a visitor to wait with him or her only when that officer has reason to believe that an offence against section 39, 40 or 42 of the 1952 Act has been committed, or that the person has attempted, incited or aided and abetted such an offence.
Finally, we propose limiting the period of detention permitted under the clause to what is necessary to allow a police officer to attend the prison and take over the arrest of the suspected offender. To remove any ambiguity that that test might create, we have provided that the period of detention should not exceed, as the hon. and learned Gentleman has said, two hours in any event. The two-hour period was chosen to allow reasonable time for the police to get to a remotely located prison at peak times. Consequently, detention under the two-hour power would be, we hope, very much the exception rather than the rule.
In our view, the time limitation and the requirement that there be reasonable suspicion that an offence has been committed ensure that any detention under the clause either does not engage or is entirely compatible with article 5 of the European convention on human rights. To ensure that the power to detain is fully effective in those circumstances where it is needed, the clause also makes it an offence to attempt to make off from such a period of detention and allows for reasonable force to be exercised in support of the detention.

Crispin Blunt: Can the Minister give us any statistics about the number of times that such powers are required and about the concomitant burden that falls on the police force that happens to be local to the prison? Obviously the deployable resources of the police are frequently stretched, although perhaps not always in visiting hours. I would be grateful for some indication from the Minister how often the powers are required.

Gerry Sutcliffe: As I said, I do not believe that the powers will be used on a vast number of occasions. I do not have an exact figure to hand. However, the police would clearly be interested in acting if reasonable concerns had been raised by the prison custody officer. I am not trying to deflect the hon. Gentleman’s question. I am as concerned as he about the use of police resources, but we are trying to set out a sensible opportunity for the police to be called if there is a reason to suspect that an offence is being committed. We think that the two-hour period is enough to ensure that there is no impact on police resources and is appropriate in areas where great distances need to be travelled. If we have any figures, I will make sure that the hon. Gentleman receives them. We are talking about prison visitors here, so any occurrence would be very rare.

Edward Garnier: The point is about police resources and dealing with prisoners. I understand that, on 12 January, there were 300 prisoners in custody in police station cells. I wondered whether, when the Minister writes to my hon. Friend the Member for Reigate, he would include an up-to-date figure on the precise number of people who would normally be in prison but are currently in police cells. I think that we need clarity on that.

Gerry Sutcliffe: The hon. and learned Gentleman is tempting me down a route that I do not wish to take and which is outside the scope of the Bill. The issue is of public interest, and the Home Secretary and I intend to keep the House adequately informed, especially on the progress that we have made. I think the hon. and learned Gentleman refers to Operation Safeguard, but to give any great detail at this point would be wrong.
We were talking about where we are heading with the detention powers in the clause. Creating new detention powers raises key civil liberties and human rights issues, which we have taken into account seriously during drafting. I hope that we have put the right safeguards in place. We think that bringing the private sector into parity with the public sector on these matters is important. I hope that, with the explanations that I have given, clause 12 can stand part of the Bill.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.

Clause 13

Powers of authorised persons to perform custodial duties and search prisoners

Mark Hunter: I beg to move amendment No. 39, in clause 13, page 10, line 13, at end add—
‘( ) A worker at a contracted-out prison shall be subject to qualification requirements that the Secretary of State shall by regulation define.’.
Clause 13 deals with the powers of authorised persons to perform custodial duties and search prisoners. As with earlier amendments, the amendment in my name and that of my hon. Friend the Member for Ceredigion is probing. It addresses the issue of the qualification requirements that the Secretary of State might choose to impose on workers, at contracted-out prisons in particular. I seek to establish precisely what training, qualifications and vetting process will be required of the staff of a contracted-out prison before they are given the special status established in the clause and allowed to perform duties previously reserved for prisoner custody officers.
That information is needed for a number of reasons. First, as with probation, the quality and effectiveness of the Prison Service depends on the individuals working in it. They need to know how to deal effectively with prisoners, how to supervise them with care for the safety of the public and how to help with the rehabilitation process.
At present, somebody wishing to become a prison officer has to undergo a vetting process, a selection test and specific training. There is continual assessment and support from experienced staff. The clause opens up the profession to allow other staff members who have not undergone the necessary training and vetting procedures to work on tasks for which that training is considered vital. For example, supervising prisoners and therefore protecting the public requires a thorough understanding of security checks and searching procedures. Dealing with prisoners who are a danger to themselves or are in danger from other prisoners requires a level of inter-personal skills for which prison officers are tested in the recruitment process but which other staff members do not necessarily have.
We are anxious to gain an assurance from the Minister that those involved in restricted activities such as searching prisoners and visitors and other custodial tasks will have the necessary training and skills. It is essential that training is mandatory and that the supervision of those receiving on-the-job training is vigorous and carried out by experienced PCOs.
Furthermore, it is essential that those working in private, contracted-out prisons can exercise powers to search and detain only within a clear framework of accountability, as exists in the statutory sector, because of the new powers allowing auxiliary workers to undertake previously restricted tasks such as the searching of children. Will the Minister address that issue?
I hope that nobody will mistake this for a trivial issue. The Howard League for Penal Reform, which has expressed its concerns about the change, found that in one secure training centre alone more than 1,500 searches were carried out, some of which included the instruction to remove all clothing. We must ensure that those carrying out such searches, who will not necessarily be trained and qualified PCOs, are fit to do so. The Children’s Society and Barnardo’s expressed similar concerns in a joint document, writing:
“We are anxious to receive assurances that any powers given to authorised persons to perform custodial duties and search prisoners will, where relevant, be accompanied by robust training requirements, child safety protection and welfare safeguards.”
I share that anxiety and would like an assurance from the Minister that the staff who will perform previously restricted duties will be adequately vetted and trained under the current Department for Education and Skills guidelines for working with children, “Common Core of Skills and Knowledge for the Children’s Workforce”. Will the Minister assure as that those safeguards of child safety will be in place and that auxiliary staff who gain special status will be CRB-checked, checked against the new vetting and barring system put in place under the Safeguarding Vulnerable Groups Act 2006 and trained according to the most recent DFES guidelines for working with children?

Gerry Sutcliffe: I thank the hon. Gentleman for the spirit in which he spoke to the amendment.
The difference between public sector and contracted-out prisons is unnecessary and inefficient. There are different operating practices between the two sectors, which is sometimes detrimental to the operations and security of prisons. The Criminal Justice Act 1991 specifies that a custodial duty should be performed by a PCO. However, the 1991 Act does not explicitly define the scope of a custodial duty, which creates unhelpful potential for confusion about what staff other than the PCOs can do in a private prison.
The aim of this clause, alongside other amendments to the 1991 Act made by the Bill, is to clear up that confusion by providing a mechanism by which those tasks can be carried out by non-PCO staff who will be listed in a statutory instrument. Consequently clause 13 formally recognises that a non-PCO may, subject to the authorisation of the director, do tasks requiring the performance of some form of custodial duty. In order for a non-PCO to do such a task, it must be listed in a statutory instrument and the work must have been separately authorised by the director of the prison in which he or she works.
The public sector employees operational support grades will work alongside prison officers. Those OSGs will perform a limited range of custodial duties in support of the prison officers. The equivalent to a OSG in a private prison is an auxiliary officer. However, due to the restrictions of the 1991 Act, the only people who can perform custodial duties in a private prison are PCO grades. The absence of a clear definition of a custodial duty in the 1991 Act has created unhelpful  confusion over what operational duties non-PCO staff can undertake. The position becomes potentially even more unclear as the public sector, free of any such requirements, makes greater use of OSGs to support prison officers in the course of their custodial work.
The result is potential disparity between the two sectors in who is able to perform ostensibly similar tasks. As an OSG is paid less than a prison officer it gives the public sector a financial and competitive advantage over private contractors. It also provides a clear operational disadvantage by creating greater operational flexibility which it would be desirable to extend to private prisons. We are not seeking to provide non-PCO staff with any power beyond those held by their OSG-equivalent colleagues in the public sector. We are merely seeking to establish that it is sensible to allow both to have equal powers so as to ensure effective security and operational delivery.
To bring them in line with the equivalent public sector staff, staff in private prisons need to be able to do certain tasks that may involve the performance of a custodial duty. If we do not give them those powers, inefficiencies in operational management will continue, and transfer from one sector to another will be made more difficult. We are formally recognising the professional work already undertaken over many years by staff other than PCOs to support the effective running of a private prison. In exactly the same way as the OSGs have become a crucial part of the operating environment in public sector prisons, in support of prison officers, so auxiliary officers need to carry out a similar range of functions in private prisons.
It is important to remember that nothing in this clause will extend the boundaries of flexible staff deployment in private prisons any further than is already operating very successfully in the public sector. Indeed, it is only by virtue of the different employment status of staff in public sector prisons, rather than any tension in legislation, that this clause is needed at all. The public sector Prison Service has been able to create grades of staff other than prison officers to suit the changing operational environment that it faces, according to need and without any legislative restrictions on the range of custodial duties that those new grades will then perform.
If we are serious about giving effect to the principle of contestability across the prison estate, it is vital that this flexibility be given to the private sector too, subject to those safeguards which it is sensible to put inplace to ensure effective scrutiny of the resulting arrangements. Restrictions on who can perform custodial duties in private prisons mean that while the public sector can regrade duties of a supportive nature, such as gatekeeping and CCTV monitoring of prison officers, to allow other grades of staff to perform them on the grounds of operational expediency and cost-effectiveness, the private sector is required to persist with rigidly imposed and unjustified requirements to use PCO staff. Such restrictions are then passed on to the taxpayer when savings could otherwise have been made with no more risks to order and control than have applied in the public sector.
Amendment No. 39 seeks to require the Secretary of State to set unnecessary qualification requirements for non-PCO staff before they could be authorised to perform a custodial duty. The aim of the clause is to reduce unduly restrictive limitation on those working in the private sector while ensuring that appropriate safeguards are maintained. Accepting the amendment would not only perpetuate unwanted differences in operational practice between the public and private sectors but introduce an extra difference: in the same way as PCOs can only formally carry out custodial duties, in future only those who met the requirements set out in a statutory instrument would be able to carry out duties listed under the power given by the clause. If we were to accept the amendment it would undermine the purpose of the clause. On the face of it, a requirement on the Secretary of State to make non-PCO grades subject to qualification requirements might appear to offer an assurance, but that would not be the case.

Mark Hunter: I thank the Minister for his detailed response to the amendment. I reassure him that I do not seek in any way to undermine what the clause is about. However, I have listened carefully to what he has said and I am still not clear whether he is giving me the reassurance that I seek—this is the bottom line—that the safeguards for child safety will be in place. Forgive me if he was yet to come to that, but I am concerned that it should be absolutely clear before he concludes.

Gerry Sutcliffe: I am grateful to the hon. Gentleman. The hon. and learned Member for Harborough chided me earlier about the notes that are prepared for Ministers, and their ability to put on the record all that is needed and to ensure that nothing is missed. It is important that we ensure that everything that should be on the record is on the record for when people look back on the debates. However, even though I feel that I am reiterating many of the points, I reassure the hon. Member for Cheadle that this is about equalising the relationship between private and public sector providers. We are not giving any new powers to the private or public sector, but providing the flexibility requirements that we need to deal with offenders better.
The hon. Gentleman asks for assurances. Clearly, we want to ensure that all the current protection measures will be in place and that the appropriate checks will be made on the staff who go through the private sector. Clearly, they will go through a thorough selection process with the contractors prior to employment and all the employment checks that he asked to be carried out will be, including the CRB checks. It is important that the contractor can prove that the training will be provided to ensure that the person who will carry out the services is adequately trained and supported.
The position is clear. In the training centres in particular, we need to ensure that the public sector provisions are in place. That includes those covering how officers are trained, and their abilities and powers to carry out their duties competently and appropriately and to ensure that the safeguards and checks are met. I hope that those assurances give the hon. Gentleman the opportunity to support the clause.
I want to refer back to the CRB checks. The hon. and learned Member for Harborough talked about what might be on the national identity register, referring to the announcements made by the Home Secretary the other day. A great deal of information is  kept not only in the criminal justice system but across the Departments and elsewhere. The Secretary of State has written to Cabinet colleagues to see whether it is time for them to agree that we ought to consider such information, whether it is held by the DFES, the Department of Health or whoever, to ensure that nothing is missed. One of our great concerns about child protection and child safety is that nothing should be missed. We have seen far too many examples when information that could have been shared has not gone to the appropriate person. It is in that context that my right hon. Friend the Home Secretary made his announcement the other day.
I hope that I have satisfied the Committee. I hope that I have given the reassurances that the hon. Gentleman was seeking and that he will withdraw his amendment.

Mark Hunter: I am grateful for the Minister’s further attempt to be very specific on the issues that concern us. I indicated at the start that the amendment was a probing amendment and, knowing the Minister to be a reasonable person and a man of his word, I am prepared to accept the assurances that he has given. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Hunter: I beg to move amendment No. 30, in clause 13, page 10, line 20, at end add—
‘(4) The Safeguarding Vulnerable Groups Act 2006 (c.47) is amended as follows.
(5) After paragraph 3(1)(g) of Schedule 4 there is inserted—
“(h) contracted out prisons”.’.
This, too, is a probing amendment. It is needed to ensure that those working in contracted-out prisons and secure training centres who undertake activities relating to children receive adequate and appropriate training in working with children and young people, and that they are subject to the relevant requirements of the Safeguarding Vulnerable Groups Act 2006.
No doubt the Minister will seek to reassure me about this, but clause 13 gives auxiliary staff working in privately contracted-out prisons, including privately run young offender institutions and secure training centres, the power to carry out tasks equivalent to those now exercised by operational support grades in public prisons. That includes performing custodial duties and searching prisoners, although the use of force is not permitted in carrying out those activities.
There are no explicit child safety protection and welfare safeguards within the measures, and there is no mention of training that staff might receive prior to working with children or of any vetting process that they might undergo before they are allowed to do so. My concern is that that might demonstrate a lack of foresight and care on the part of Government in relation to the protection of the most vulnerable in our society.
My final point is that the Safeguarding Vulnerable Groups Act 2006 prevents people on the barred list—including list 99 for teachers, the Protection of Children Act 1999 list for those working in childcare settings and a new list of people barred from working with vulnerable adults—from working in establishments in which they would come into close  contact with children. Once again, we are seeking reassurances that there will be an appropriate belt-and-braces approach to the important consideration of safeguarding children and vulnerable groups. In the spirit in which I moved the last amendment, I look forward to hearing the Minister’s response on this matter.

Edward Garnier: The hon. Gentleman has lighted upon a subject that needs greater airing. While I accept that he will not press the amendment to a vote, there is a lacuna in the way in which we deal with the mentally ill in prison. If they come under the definition of vulnerable groups, this affords me a brief opportunity to say something about that.
As the Minister knows, or ought to know, there are far too many people in prison who ought to be under the care of the part of the national health service that deals with mental illnesses. I shall not go into historical analysis, because that is not strictly germane to the Bill, but it is important that we should understand that in our adult prison estate, there are people with mental illnesses—

Peter Atkinson: Order. I must stop the hon. and learned Gentleman there. The amendment is about child care, so he is straying extremely wide of the detail.

Edward Garnier: In the Inner Temple garden, there is a statue of a small boy. Underneath, it says, “Lawyers too were children once”.

Peter Atkinson: Order. I do not think that that tactic will get you round me.

Edward Garnier: I was hoping by that sleight of hand elegantly to reverse in such a way that I could put my bottom back on my chair. However, I shall have to do it rather more rudely. I fully accept what you have said, Mr. Atkinson. I have highlighted the issue of mentally ill prisoners, as there may be nowhere else in the Bill where I can legitimately discuss it within the rules of the Committee. I shall use any other opportunity that I can to highlight the difficulties suffered by the Prison Service in looking after mentally ill prisoners, be they youngsters or people over the age of 18. It is a crying scandal, and we need to do something about it.

Peter Atkinson: Order. The hon. and learned Gentleman might direct his attention to the new clauses, which will give him the opportunity that he seeks.

Gerry Sutcliffe: I will direct my attention to the amendment tabled by the hon. Member for Cheadle. Many of the points that he raised in the discussion on the previous amendment apply to this proposal, too. I assure him that I want to be helpful, but amendment No. 30 is both legislatively and operationally flawed. However, as it is a probing amendment, I hope he will not take that criticism too much to heart.
The purpose of the clause is to deal with issues related to the activities of non-certificated staff in private prisons. The amendment would apply the regulatory framework established by the 2006 Act to everyone who works in a private prison. The 2006 Act was debated in Parliament last year and received Royal  Assent on 8 November. Consequently, all issues relating to the safeguarding of vulnerable groups have been considered very recently, and it was not felt necessary to include private prisons in that measure. That is the correct approach and nothing has happened in the interim to change it
The amendment extends significantly beyond the scope of clause 13. It would cover all staff of all grades in private prisons, whereas the clause is intended to apply only to non-PCO grades—PCOs are those officers who have direct day-to-day contact with prisoners. Under section 85 of the Criminal Justice Act 1991, PCO grades must be authorised to perform their duties by the PCO certification unit. As part of that process, PCO staff are already subject to rigorous pre-employment checks, which include a requirement to disclose all previous convictions.
Although non-PCO staff do not have the same contact with prisoners and are not subject to the same certification requirements as PCOs, they are cleared by the same unit as part of their pre-employment checks. Any person who wants to work at a private prison receives a basic enhanced police check. In addition, anyone who will be working in a juvenile prison or who will come into contact with children or vulnerable adults also undergoes that CRB check. The pre-employment checks are consistent with those undertaken on equivalent grades in the public sector, where the amendment would not apply. An additional bureaucratic check is not necessary or justified, as existing safeguards on staff suitability are adequate.
The clause already limits the range of custodial duties that a non-PCO grade can perform and submits those tests to parliamentary scrutiny. The Secretary of State will have to specify in an order subject to the negative procedure the activities that a worker may be authorised to carry out. The list in the clause specifically excludes the use of force.
A non-PCO has to be separately authorised at establishment level to carry out any task that is listed in an order. Such an authorisation can be given only by a director, where appropriate, and can be made subject to limitations or conditions. In determining whether an individual should be authorised or whether an authorisation should be limited or made subject to conditions, a director will need to satisfy himself that an individual has an appropriate level of experience and expertise in order to carry out the listed tasks in question, which is an inherent requirement of any such power. When a director makes a decision on the appropriateness of an individual for a particular task, he will have in mind the contractual penalties, including financial penalties, and the damage to reputation that operational failures in private prisons incur.
I trust that what I have said gives the hon. Gentleman the reassurance that he requires. His amendment is unnecessary, and I hope that he will withdraw it.

Mark Hunter: In the spirit in which it was tabled, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14

Powers of authorised persons to perform custodial duties and search prisoners

Question proposed, That the clause stand part of the Bill.

David Kidney: I waited to see whether the Opposition spokesman would stand up, in which case I would not have bothered. However, I am one of the members of the Committee who has received two letters from the Prison Governors Association. I thought that everybody had. [ Interruption. ] They say that they have not. I want to ask the Minister whether he has had discussions with the PGA about this provision, and I want him to explain why he is not persuaded by its argument that this is a dangerous move.
To remind the Minister of the argument, if we approve clause 14, section 85(3) of the Criminal Justice Act 1991 will be repealed. Section 85(3) was introduced to prevent private justice being dispensed in private prisons. It was seen as a safeguard that there would be a public sector presence in such prisons to dish out the punishments, so that if people were subject to punishment because of breaches of prison discipline, such as an in-sentence punishment of days to be served, loss of licence time, segregation, confinement in their cell or the use of mechanical restraints, such matters would be deliberated on and pronounced by a public sector representative called the controller. If we repeal that provision today, we will be permitting the private sector to dish out the punishment instead.
The PGA, which is not known for being a radical, publicly protesting body, has said that it is particularly concerned, because it feels that, when imposing a punishment in a prison, public accountability is an important issue and that such a function should fall within the public sector. The new provisions provide that there will be some monitoring by a public servant, but it will be left to the prison to impose its own punishments. I think that the PGA has introduced a good public policy issue, and since no one else stood up to raise it, I decided to do so.

Gerry Sutcliffe: I am grateful to my hon. Friend for raising this issue, which was brought to his attention by the PGA. I have a great deal of respect for the PGA—I have met its representatives on a number of occasions, and I spoke at its annual conference last year—and I hope that I am a friend of the PGA and in the same way as I am a friend of the Prison Officers Association. We disagree about things quite regularly, but we do so in a friendly spirit.
There is a subplot to the activities of the PGA. It is sad that none of the private sector directors are eligible to become members of the PGA, and I hope that it will remedy that. Although I have not met it about that particular issue, my right hon. Friend the Home Secretary has provided Members of Parliament with a suggested response to the PGA.
On clause 14, we are seeking to transfer to the directors of contracted-out prisons—

Crispin Blunt: I just want to elucidate that document, because I do not recall getting that advice from the Home Secretary. I wonder whether the Minister would like to make that document available. Is it available only to Government Members, and can it be made available to Opposition Members, too?

Gerry Sutcliffe: I am grateful for the hon. Gentleman’s intervention. Apparently, I sent the letter. [ Laughter. ] I assure the Committee that it is very good.

Edward Garnier: The Minister will know that Home Office Ministers have difficulty in getting things to the Home Secretary; we now learn that they have difficulty getting things from the Home Secretary, and they have to make it up and say that letters from the Home Secretary were actually written by them. We need to sort this out.

Gerry Sutcliffe: I apologise to the Committee. I am the guilty man in this case. To help the Committee, I will make available the copies of the suggested response to the PGA from the Home Secretary to MPs, which I passed on to the Home Secretary.
Let me help the Committee by setting out what we are trying to do, which is to transfer to the directors of contracted-out prisons certain powers concerningthe segregation, control and, where appropriate, disciplining of prisoners that are currently exercised by controllers under the Criminal Justice Act 1991. All the powers that we propose to transfer are existing ones that are seen as essential tools for governors in the public sector to maintain order, control and discipline, as my hon. Friend the Member for Stafford has said. The powers are closely regulated by secondary legislation, such as the prison rules, and detail the instructions that private prisons are statutorily and contractually bound to follow. The instructions closely reflect the rules that apply in public sector prisons.
The power to conduct adjudications, which are internal disciplinary hearings for prisoners alleged to have broken prison rules, is a crucial control mechanism for governors in the public sector. The proposed changes will enable the directors of private prisons to be more responsible for the order and control of their establishments. In addition, they will free up controllers, who currently undertake that task on behalf of directors, to spend more time monitoring the quality and value of the services provided by the contractor. The changes will ensure that the disciplinary system in private prisons operates as speedily and effectively as possible, which will bring benefits to prisons and prisoners generally.
A disciplinary offence that may result in the award of additional days must be dealt with by an independent adjudicator, whether in a public or private prison, rather than by the governor or controller, as required by article 6 of the European convention on human rights. This proposal does nothing to alter that.
The powers of segregation and control are currently available to directors in an emergency, for which they must seek retrospective approval from the controller. The amendment that the clause makes to the 1991 Act will enable such powers to be exercised by the director acting alone, even when there is no emergency. There is no evidence to suggest that directors have misused the powers since the first private prison opened in 1992. Indeed, private prisons have been credited with a key role in improving the decency of prisoners’ treatment and conditions over the past 10 years in both sectors. I hope that with those safeguards, the controller will have a wider role, notwithstanding my hon. Friend’s comments about the effect of the provision in the private sector.

Question put and agreed to.

Clause 14 ordered to stand part of the Bill.

Edward Garnier: On a point of order, Mr. Atkinson. Before we finish, I would like to say that I am happier now that we have corrected, as best we can, the transcript of the evidence session that took place before the Committee started. I thank you for explaining that procedure. I also thank Peter Butler in my right hon. Friend the shadow Secretary of State’s office for working hard on the transcript. It is imperfect, as there are one or two points at which the evidence is inaudible, but we have endeavoured, in so far as we can, to produce a readable document. I leave it to you, Mr. Atkinson, to advise us how you would like to receive it and what will happen to it thereafter.

Peter Atkinson: I shall come back to the hon. and learned Gentleman after I have taken advice, as this is uncharted territory.

Crispin Blunt: Further to that point of order, Mr. Atkinson. Having had a conversation with a Clerk in the scrutiny unit who already has an electronic copy of the transcript, I understand that the Chairman has to authorise the publication of any evidence that is submitted as part of a Committee’s documentation. I will submit the transcript to you now, Mr. Atkinson, and you can then have it admitted as evidence and published in time for our sitting on Tuesday, if you and the Clerk are content that the procedures have been followed.

Peter Atkinson: I understand that that should be no problem.
Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at four minutes past Four o’clock till Tuesday 23 January at half-past Ten o’clock.